Kerry Stokes & the NLA lose Freedom of Information legal battle against KCA Blogger

I had a legal win regarding a FOI application on Friday against the National Library of Australia (NLA) whose Chairman is Kerry Stokes’ son Ryan. It is a stick of dynamite that has the potential to drag a lot of people into what is evolving into a national corruption scandal. The FOI fight involves myself, the NLA, Kerry Stokes and now many others.

Background

I started publishing on this website in January 2011. In about September or October 2011 I was approached by the Pandora website, which is owned by the NLA, who requested permission to archive my website on their website. Pandora archive selected Australian websites so they are there for future generations and I agreed for them to archive this site. I even put a message at the top right hand side of this site advertising Pandora with a link to the archived site. I thought it was not a massive issue but something worth promoting.

Pandora archived the KCA site in November 2011 and re-archived it in November 2012 and were due again in November 2013. I did not check until February 2014 and noticed they had blocked access to the archived site.

The Complaint

I phoned the National Library of Australia (NLA) (27/2/14 at 4.25pm – call lasted 22 minutes) and found out that someone had made a complaint at the beginning of September 2013 and that the NLA stopped access after receiving the legal letter from the complainant. They said the complainant said there were defamatory articles on my site and demanded the NLA take certain action as the NLA was liable for the archived site. The library stopped public access to the archived site on their Pandora website and stopped re-archiving my site.

I was told by an NLA staff member that it is very rare for the NLA to block access and stop updating archived websites.

The main person I suspected as being the complainant was former Prime Minister Kevin Rudd because the federal election was in September 2013 and I had written a number of critical articles about him and his wife. (Click here to read some of the articles) Although, when Stokes instituted defamation proceedings against me in April 2014 for a post I published in February 2014 he became a suspect as well. Even more so given his son is Chairman of the NLA.

The NLA would not tell me much more and did everything they could to conceal the identity of the complainant. So for the last 12 months I have been in a Freedom of Information battle with the NLA and the mystery complainant whose identity I did not know.

As it turns out the complainant is Kerry Stokes and the complaint was sent to the Library by Channel 7’s lawyer Justine Munsie from Addisons Lawyers. Kerry Stokes is Chairman of Seven West Media and Ryan Stokes is a director.

What is disturbing is that Mr Stokes son, Ryan, is the Chairman of the Australian National Library and even worse is that there was no legal basis for the NLA to stop archiving my website.

The alleged defamation

The complaint to the NLA would have related to 2 articles I wrote about Mr Stokes in 2011 and 1 in 2013. The second article in 2011 was about a legal letter sent to me from Stokes’ lawyer Justine Munsie threatening defamation action because of the first article I wrote. All three articles are still on my site and have never been the subject of court action by Mr Stokes. (Click here for article 1 and here for article 2 and here for article 3 to read the articles) Given Kerry Stokes failed to take action against me it is a bit rich for him tell other people the articles are defamatory and threaten them with legal action as he has done with the NLA.

Kerry Stokes and Ryan Stokes - Picture from the AFR (Click here to see more)

National Library of Australia FOI request

I made a Freedom of Information request to the NLA in March last year and they gave me virtually nothing. They admitted they had 7 relevant documents but gave me only a heavily redacted email chain on the 2-5-14. (Click here to read)

If you’re not happy the next step is to ask the NLA management to review their decision which I did and they sent me their decision on the 12-6-14 that did nothing but support the first FOI request decision to give me bugger all. (Click here to read)

Office of the Australian Information Commissioner judgment

If you are still unhappy with the decision of the FOI request and review by the NLA then you make an application for a review and investigation by the Australian Information Commissioner. They started investigating my matter in August 2014 and took submissions from me, the NLA and Kerry Stokes via his lawyer Justine Munsie. I received the judgment 5.30pm Friday (27-3-15). (The AIC had issues regarding funding from the federal government last year which affected their operations. What their current situation is I do not know so check their website if you plan on making a complaint to them. Click here)

While the judgement by the Office of the Australian Information Commissioner did not name Kerry Stokes there are a number of things in the judgment that made it very clear it was Kerry Stokes. For example at paragraph 76 it says:

“I have performed a simple internet search of the names of the third party and Mr Dowling. I found a 2014 article in Australian Financial Review newspaper directly related to the issues raised by the third party in his complaint. This article also names the law firm and the partner representing the third party and discusses defamation action. I am satisfied that the substance of the information contained in documents 1 and 2 is already well known.” (Click here to read the full report)

There are only 2 articles in The Australian Financial Review that I know of and they are both in 2014 and both relate to me, Kerry Stokes and Channel 7’s lawyer Justine Munsie from Addisons Lawyers. (Click here to read the first article) It was always going to be almost impossible for the Commissioner to write his report and for me not to be able to guess who the complainant was based on what was in the report.

The bottom line to the judgment is that the National Library of Australia acted illegally to try to protect Kerry Stokes being outed as the complainant. And Kerry Stokes is the father of the NLA Chairman Ryan Stokes which by itself raises many questions for many people to answer.

The NLA can appeal the judgment by the Information Commissioner and have 28 days to take it to the Administrative Appeals Tribunal but that would now be a waste of time. Maybe Stokes might try appealing as that is how he operates.

This isn’t the first time I have beaten Kerry Stokes and his legal advisors in a dispute of the law. I whipped him in the Supreme Court of NSW in April last year as well so he should be used to it by now. (Click here to read the judgement) It is not because I am that good, it is because Stokes’ legal advisors are incredibly bad or Stokes does not listen to them. Either way he is losing the battle.

What the win means

The Commissioner’s judgment summarised at paragraph 95:

“The NLA must now provide Mr Dowling with unedited copies of documents 1, 2, 5 and 7; and copies of document 3 and 6 edited under s 22 of the FOI Act to remove exempt material, and material irrelevant to the request.”

These are documents that the NLA and Kerry Stokes were trying to conceal from me so I did not know that Stokes was the complainant. It is obvious from reading the judgment that Stokes made the complaint. What else the documents will reveal we will have to wait and see.

Ryan Stokes outside the National Library of Australia

Some of the unanswered questions

There are many questions that need to be answered and some are:

1. How much money has the National Library spent (taxpayers money) trying to protect Kerry Stokes from being identified? Do they do that for other people who make complaints?

2. How did the NLA get it so badly wrong with the Freedom of Information request? Was it deliberate and was it on someone’s instructions?

3. Why did the NLA stop archiving the whole website? Why did the NLA not just take down the complained about articles and leave the rest of the site archived?

4. What knowledge and/or involvement has Ryan Stokes had?

5. If and when were the NLA Board of Directors notified of the clear conflict regarding the Chairman Ryan Stokes? What action if any did they take?

6. Has Addisons Lawyers breached their duties? How can they represent the NLA Chairman Ryan Stokes and his father Kerry Stokes the complainant in the same matter.

7. Are Kerry Stokes and Ryan Stokes fit and proper persons to be directors of listed companies such as Seven West Media Limited? Are the Seven West Media shareholders paying for the matters outlined in this post?

8. Why did the NLA deny me natural justice by not telling me what the complaint was, who made the complaint and give me a chance to respond before they decided to stop archiving my site? Do they always deny people natural justice?

They are some of the questions but are a good starting point.

Has a criminal offence taken place?

At some stage moving forward the question of whether or not criminal offences have been committed will likely arise. It is not something that I will turn my mind to in this post but it worth noting before my next post on this scandal.

Ryan Stokes position is untenable as Chairman of the Australian National Library

Both the library and Mr Stokes need to make public statements on the issue and Mr Stokes has to resign immediately to protect the reputation of the NLA. Waiting another 3 months until his 3 year tenure expires on the 30th of June is not good enough.

I did write to Ryan Stokes and Kerry Stokes via Addison Lawyers last year and asked them a number questions regarding their possible involvement with the NLA’s decision. They in effect replied and said Ryan was not involved but failed to answer if Kerry Stokes was. Both obviously knew Kerry was the complainant and so did their lawyers. (Click here to read the email)

Where to now?

There are many things that can be done now such as a new FOI request to the NLA, a likely complaint to the NLA as well, possible complaints to the Commonwealth Ombudsman and maybe others. One thing’s for certain and that is you have not heard the end of this. It has been a long battle but well worth it.

Update: A copy of the judgment: Shane Dowling and National Library of Australia [2015] AICmr 24 (27 March 2015) is now on the Austlii legal judgment website. (Click here to read more)

The above post is by Shane Dowling who publishes the website: Kangaroo Court of Australia: http://web.archive.org/web/20150527180153/http://kangaroocourtofaustralia.com/2015/03/29/kerry-stokes-the-nla-lose-freedom-of-information-legal-battle-against-kca-blogger/

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